The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Let's take a legal realist approach for a minute.
I don't necessarily disagree with any of Steve's legal analysis of the Texas lawsuits (although I am still on the fence about the US suit myself). But it does seem likely from oral argument that a majority of the Court does. As I read my tea, five or six justices are strongly inclined to authorize some kind of lawsuit that can get some kind of relief against the enforcement of the law.
But it is not clear on what basis. Precisely because of how the law was designed to work around existing doctrine, every path to an injunction will require doing something a little odd. As I listened to the argument, I counted four paths being seriously mapped out:
- Say that private plaintiffs can get an injunction against state judges and/or state clerks, not withstanding dicta in Ex Parte Young and notwithstanding the seeming neutrality of what the judges and clerks are doing so far.
- Say that the private plaintiffs can instead get an injunction against the Texas Attorney General, naming him as the defendant under Ex Parte Young, under the fiction that he has something to do with the private plaintiffs who can sue under the act, even though he doesn't. (This seemed to be Justice Kagan's favored approach.)
- Say that the United States has a cause of action notwithstanding the limits of In re Debs, and that Texas is the proper defendant in such a suit notwithstanding the puzzles about how an injunction can operate against an abstract sovereign entity (some of which seem to re-open questions 1 or 2).
- Mumble, mumble. Say something like: In an ordinary tort case, of course you would have to go through the state courts. But this is not an ordinary case for 6-9 reasons, which will be listed but not fully explained. (This seems to be Justice Breyer's approach.) I'm still not totally certain what relief would actually issue after the reasons are recited.
(These are not the only possibilities. I could also imagine the Court instead encouraging a collusive suit, or writing a Marbury-style advisory opinion that simultaneously affirmed but announced the unconstitutionality of the law, or homing on the Fifth Circuit's dubious assumption of interlocutory jurisdiction over part of the case. But if any of those are on the table, we didn't see them.)
Again, even if we assume that the Court knows what destination it wants to reach, it still has to pick a path. And it seems to me that each path has advantages and disadvantages, each skirting a different fence that might have been erected for a reason.
As a matter of legal doctrine, 3 is probably the least weak argument, in part because there is so little precedent in sovereign-sovereign suits. On the other hand, some justices seemed especially nervous about 3 because it seemed so unusual, which it is. If you instead focus on "seeming normal," then 2 or even 1 might be a better path -- we are all used to Ex Parte Young suits, so even if it is doctrinally chancier, expanding Ex Parte Young may seem less weird than allowing a sovereign suit. Or if the goal is just to do as little damage to the existing doctrine as possible, 4 recommends itself, since the opinion could as good as say "don't try this at home, we're just doing this to ensure that we can maintain judicial supremacy."
I'm not saying I endorse results-first decision making, or judicial supremacy for that matter. But even for those who do, there are going to be some interesting questions about how to get there.